W.C. No. 4-630-152.Industrial Claim Appeals Office.
August 17, 2005.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) that determined the claimant suffered a compensable injury while working as the respondent’s “employee.” We affirm.
The claimant was employed by the respondent to set up furniture in hotels. The claimant was injured at a hotel on November 22, 2002, when a mirror being moved into the hotel fell on the claimant.
The ALJ determined the industrial accident was sufficiently related to the conditions and circumstances under which the claimant usually performed her job functions, so as to be incidental to the employment. Consequently, the ALJ concluded the injury arose out of and in the course of employment.
The ALJ also found the respondent dictated the claimant’s work hours, paid the claimant an hourly rate, and reserved the right to terminate the claimant’s employment at any time without violating terms of the employment contract. Based on these findings, the ALJ determined the respondent failed to prove the claimant was not its “employee” at the time of the injury. Consequently, the ALJ ordered the respondent to pay workers’ compensation benefits and penalties on account of the injury.
On review, the respondent reasserts his contention that the claimant was as an independent contractor, who was required to carry her own insurance. In support, the respondent relies on evidence the claimant was issued a 1099 form for wages, and was required to provide her own tools and transportation. We perceive no error in the ALJ’s finding that the claimant was the respondent’s “employee.”
Section 8-40-202(2)(a), C.R.S. 2004, provides that an individual “who performs services for pay for another shall be deemed to be an employee” unless the individual is:
“free from control and direction in the performance of the services, both under the contract for performance of services and in fact and such individual is customarily engaged in an independent trade, occupation, profession, or business related to the services performed.”
Once the claimant establishes that she performed services for the respondent in exchange for a wage, the burden shifts to the respondent to prove the claimant was not an employee by showing the claimant was free from control and customarily engaged in an independent trade. Whether the respondent sustained its burden of proof is a question of fact for resolution by the ALJ Nelson v. Industrial Claim Appeals Office, 981 P.2d 210
(Colo.App. 1998). Accordingly, we are bound by the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2004; F.R. Orr v. Rinta, 717 P.2d 965
(Colo.App. 1985). Furthermore, this standard requires that we defer to the ALJ’s credibility determinations, as well as his assessment of the sufficiency and probative value of the evidence.
Section 8-40-202(2), C.R.S. 2004, provides that the test for determining whether an individual is an employee or an independent contractor shall be based on the nine criteria set forth in § 8-40-202(2)(b)(II), C.R.S. 2004. Under that statute, factors indicating that an individual is not an independent contractor include the individual being paid a salary or hourly rate instead of a fixed contract rate, and being paid in his individual name rather than a trade or business name. Conversely, independent contractor status may be indicated if the person for whom the services are performed provides no more than minimal training to the claimant, does not dictate the time of performance, does not establish a quality standard for the claimant’s work, does not combine its business with the business of the claimant, does not require the claimant to work exclusively for one person or company and cannot terminate the claimant for any reason.
However, the statute does not establish any precise number or combination of factors which is decisive in determining whether or not the claimant is an employee or an independent contractor. Rather, the ALJ determines as a matter of fact whether or not particular factors are present, and ultimately, whether the claimant is an employee or independent contractor based on the totality of the evidence concerning the statutory factors. Nelson v. Industrial Claim Appeals Office, supra.
The respondent’s arguments notwithstanding, the record is subject to conflicting inferences concerning whether the claimant was an independent contractor. Regardless of whether the respondent issued a 1099 form to the claimant, did not withhold taxes and did not provide any tools, the ALJ’s findings that the respondent controlled the claimant’s work hours, paid the claimant an hourly wage, and could fire the claimant for any reason without additional liability are supported by substantial evidence in the record. These findings also support the conclusion the claimant was not sufficiently free from the respondent’s direction and control to be an independent contractor.
The respondent also argues that the injury did not arise out of the employment because its employees were told not to touch the hotel mirror, and the claimant’s job duties did not include installation of the mirror. Again, we disagree.
A compensable injury is an injury which “arises out of and in the course of” employment. Section 8-41-301
C.R.S. 2004; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). An injury “arises out of and in the course of” employment when the origins of the injury are sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions to be considered part of the employee’s services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118
(Colo.App. 1994). In this regard, the injury does not have to be the result of a mandatory employment activity. City of Boulder v. Streeb, 706 P.2d 786
(Colo. 1985) ; University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953). Rather, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995).
There is substantial evidence to support the ALJ’s finding that the claimant was injured while standing near a truck loaded with furniture to be unloaded into the hotel when the hotel staff accidentally dropped a mirror it was moving into the hotel. (Tr. pp. 16, 30, 34). Moreover, the finding supports the ALJ’s determination that the risks associated with standing near the truck were incidental to the claimant’s employment. Thus, we perceive no basis for disturbing the ALJ’s conclusion that the claimant’s injury arose out of the employment.
The respondent’s further arguments have been considered. However, the ALJ’s award of medical benefits is amply supported by the record and the applicable law. Section 8-42-101(1), C.R.S. 2004; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997) (employer required to provide medical benefits reasonably necessary to cure or relieve the effects of the industrial injury).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 7, 2005, is affirmed.
Klara Rapuochova, Totowa, NJ, Frankie Estrella, Henderson, NV, Sue Sobolik, Special Funds Unit, Division of Workers’ Compensation — Interagency Mail Chris Forsyth, Esq., Denver, CO, (For Claimant).